The Medical Marijuana Legalization Initiative (Amendment 2) was passed in November of last year by 71% of the voters. This amendment to the Florida Constitution became effective on January 13, 2017. The Florida Department of Health/Office of Medical Marijuana Use (Department) is charged with writing and implementing the Department’s rules for medical marijuana; overseeing the medical marijuana use registry; and licensing businesses to cultivate, process and dispense medical marijuana.
In June of this year, Governor Scott signed SB 8-A, which is the enabling legislation for Amendment 2. Pursuant to Florida’s medical marijuana law, a “qualified patient” is “a resident of this state who has been added to the medical marijuana use registry by a qualified physician to receive marijuana or a marijuana delivery device for a medical use and who has a qualified patient identification card.” To qualify to receive marijuana (or a marijuana delivery device), a patient must be diagnosed with at least one of the following conditions: cancer, epilepsy, glaucoma, HIV+ status, AIDS, PTSD, ALS, Crohn’s disease, Parkinson’s disease, MS, medical conditions of the same kind or class as the foregoing, a terminal condition diagnosed by a physician other than the qualified physician issuing the certification for medical marijuana use and chronic nonmalignant pain.
Fortunately, Florida’s medical marijuana law does provide some guidance to employers including its impact on drug free workplace programs. According to §381.986(15) of the Florida Statutes:
“This section does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy. This section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana. This section does not create a cause of action against an employer for wrongful discharge or discrimination. Marijuana, as defined in this section, is not reimbursable under Chapter 440 [i.e., Florida’s workers’ compensation law].”
As is clear from the plain language of the statute, Florida’s medical marijuana law should not affect an employer’s drug free workplace program.
But what about disability discrimination claims? Would a qualified medical marijuana user who is discharged (or not hired) as a result of a positive drug test for marijuana be able to state a disability discrimination claim against the employer? Because marijuana is illegal under federal law, there is likely no cause of action under the federal Americans with Disabilities Act (ADA). In fact, the ADA explicitly excludes from protection employees who use illegal drugs. But the question remains open with respect to a potential disability discrimination claim under the Florida Civil Rights Act.
While most court decisions relating to the use of medical marijuana have favored employers, recently, the Massachusetts Supreme Judicial Court (Massachusetts’ “highest” court) concluded that an employee with Crohn’s disease who was discharged for testing positive for marijuana could state a disability discrimination claim in violation of Massachusetts law. According to the court, the employee adequately alleged that she was disabled and that she suffered an adverse action even though she was capable of performing her essential job functions with an accommodation, i.e., a waiver of the employer’s drug policy barring anyone from employment who tests positive for marijuana. In that case, the court was not willing to declare the use of medical marijuana as a per se unreasonable accommodation solely out of respect for federal law. The court explained that the employer had a duty to engage in the interactive process with the employee to determine whether there were another equally effective medical alternative to marijuana that would not violate its policy. Additionally, if no equally effective alternative were available, the court further explained that the employer would have the burden of proving that the employee’s medical marijuana use posed an “undue hardship,” e.g., an unacceptably significant safety risk.
The use of medical marijuana is an evolving area of the law not only in Florida, but across the country. While Florida employers are not expected to face immediate changes in their drug free workplace programs, additional guidance, which will likely come from the courts, is needed regarding state law disability discrimination claims. In the meantime, employers are urged to confer with legal counsel before making an adverse employment decision relating to an individual’s use of medical marijuana.
Mike Miller is with Miller Tack & Madson, FHCA’s Labor Relations Consultant. Learn more about MTM at www.peolawyers.net.